{"id":416,"date":"2021-03-30T16:51:02","date_gmt":"2021-03-30T20:51:02","guid":{"rendered":"https:\/\/www.debousquet.com\/blog\/?p=416"},"modified":"2022-03-03T10:30:40","modified_gmt":"2022-03-03T15:30:40","slug":"ghosting-the-employee-postponing-the-problem-of-covid-19-layoffs","status":"publish","type":"post","link":"https:\/\/www.debousquet.com\/blog\/2021\/03\/30\/ghosting-the-employee-postponing-the-problem-of-covid-19-layoffs\/","title":{"rendered":"Ghosting the Employee- Postponing the Problem of Covid-19 Layoffs"},"content":{"rendered":"

You\u2019ve been sitting at home staring at your phone and waiting for them to call and answer your messages. At first, it was a week. Then a month. And now you\u2019re here. You weren\u2019t ghosted by your date. You\u2019ve been ghosted by your employer.\u00a0<\/span><\/p>\n

Under s. 6 of the regulation, if an employee\u2019s hours of work or their wages are reduced or eliminated during the Covid-19 period, they will not be considered laid off.\u00a0<\/span><\/p>\n

Normally under s. 56 of the <\/span>Employment Standards Act<\/span><\/i> (ESA)<\/span><\/i>, if either of the above were to happen for longer than 13 weeks in a consecutive 20 week period, an employee is deemed to have been automatically terminated.\u00a0<\/span><\/p>\n

The extension now means that the Covid-19 period will expire on January 2, 2021 (having retroactively begun on March 1, 2020), after which the standard <\/span>ESA<\/span><\/i> rules will once again apply.\u00a0<\/span><\/p>\n

In the announcement, Monte McNaughton, Minister of Labour, Training and Skills Development, explained, \u201cThe cost of termination and severance pay can make it impossible for a business to survive and reopen. That\u2019s why we acted to make sure businesses survive, and workers have jobs to come back to.\u201d<\/span><\/p>\n

This is a laudable goal. Concerns, however, have been raised about the effect of the regulation and extension on employer action and employee rights.<\/span><\/p>\n

Termination<\/a> and severance pay are an entitlement under both the <\/span>ESA<\/span><\/i> and the common law. The characterization of it as a detriment to businesses and the economy is a worrying statement to come from the Minister. Especially so at a time when so many people are concerned about the safety of their employment.\u00a0<\/span><\/p>\n

Termination and severance pay are based on the concept of reasonable notice. An employer only has three choices when terminating an employee without cause.\u00a0<\/span><\/p>\n

An employer can provide an employee with written notice that their job is being terminated in advance, and the employment will end on that specified date. The employer cannot make any change to the employee\u2019s rate of pay, benefits, entitlements, or any other term of employment. This is working notice.\u00a0<\/span><\/p>\n

Alternatively, an employer can provide an employee with the equivalent of the wages they would have earned during that working notice period. This includes benefits and all the entitlements they would have received if still working, such as pension contributions. This allows an employer to end the relationship on the same day. This is known as pay in lieu of notice.\u00a0<\/span><\/p>\n

Finally, an employer can opt to use a combination of the two above options, provided that the sum of both passes the mandatory threshold under the <\/span>ESA<\/span><\/i>.\u00a0<\/span><\/p>\n

The standard amount of notice under the <\/span>ESA<\/span><\/i> is prescribed in s. 57, based on the length of employment. There are also additional notice amounts for specific scenarios. Most employees are also entitled to notice under the common law, which tends to be much higher as it is much more nuanced to the employee\u2019s situation and reality of losing their job. As such, common law notice is based on numerous factors, such as the length of employment, age of the employee, type of employment, and the availability of other substantially similar employment to an employee. These factors show the underlying purpose is to provide the employee with enough income to sustain them until they can find alternative employment.\u00a0<\/span><\/p>\n

The concept of mitigation ties into this, as an employee will have to show they were engaged in an active job search during that period. If they do find employment, the amount of severance can be reduced.\u00a0<\/span><\/p>\n

At all times, both an employee and employer have a duty to act in good faith regarding the employment relationship. When an employer has a layoff, those employees are still employed by the employer. A layoff is defined as a reduction in or elimination of hours of work or wages. It is not a suspension or termination of the employment contract. During the process of recalling an employee, or increasing their hours of work, an employer must act in good faith. Examples of violating this duty include the following.\u00a0<\/span><\/p>\n